Supreme Court must hear Prop. 12 challenge

Pork industry in America will fundamentally change if measure goes into effect.

November 5, 2021

3 Min Read

The fate of California’s Proposition 12, which makes it a civil and criminal offense to sell in the state pork from hogs born to sows raised in pens that do not comply with the state’s prescriptive animal housing standards, soon could rest in the hands of the U.S. Supreme Court.

The National Pork Producers Council and the American Farm Bureau Federation, along with several states, recently asked the high court to take up and rule on the constitutionality of the initiative, which is set to go into effect Jan. 1, 2022.

The groups argue that the voter-approved 2018 ballot measure violates the Constitution’s Commerce Clause, which grants Congress the power to regulate trade among the states and restricts states from regulating commerce outside their borders.

Since only a small percentage of sows in the United States are housed in pens that meet California’s overly prescriptive and unscientific mandate – and 99.9 percent of them are raised outside the state – hog farmers throughout the country would need to collectively spend hundreds of millions of dollars converting existing or building new barns to continue selling product in a state that represents 15 percent of the domestic pork market.

A study of the initiative’s impact conducted by North Carolina State University agricultural economist Barry Goodwin found construction costs alone for building a new 5,200-sow operation would be $15.6 million; retrofitting existing barns would cost an average of $10 per pig, or $770 million for the industry’s 77 million sows. There also would be compliance costs.

NPPC and the Farm Bureau have made a compelling case for Supreme Court review of Prop. 12, including citing the intimation by the U.S. Court of Appeals for the 9th Circuit that the Commerce Clause is all-but a “dead letter” – that is, no longer enforced but still on the books. (The 9th Circuit in July found NPPC’s challenge couldn’t move forward because of controlling 9th Circuit precedent.)

If the Supreme Court lets Prop. 12 stand – either because it refuses to hear the NPPC-Farm Bureau challenge, or a majority of justices don’t agree with their arguments – the pork industry in America will fundamentally change.

Some think it’s high time it did. But have they really looked at the insidiousness of the initiative, the similarly-styled Massachusetts Question 3 and other voter- and lawmaker-approved “animal welfare” measures?

Contrary to the lie activists told California voters, Prop. 12 isn’t about the well-being of animals, a cause farmers embrace by the nature of them being farmers. It’s about decreasing the consumption of meat, about having fewer animals relegated to farms.

Groups such as the Humane Society of the United States, which waged a propaganda war for Prop. 12, know that raising the cost of producing pork creates a cycle of higher prices – in this case either by forcing hog farmers to convert to or build California-compliant barns or prompting them to forgo selling to the state’s 40 million residents – followed by a decrease in demand and over and over.

The nine brethren on the Supreme Court should take note of that and rule accordingly.

Scott Hays, a fifth-generation pork producer and CEO of Two Mile Pork, LLC from Monroe City, MO, is vice president of the National Pork Producers Council.

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